Opinion
H044622 H044683
03-09-2018
In re I.R., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. D.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JD024169)
The biological father in this juvenile dependency proceeding challenges the juvenile court's order giving the child's stepfather presumed parent status under Family Code section 7611, subdivision (d). He also challenges a finding under Family Code section 7612, subdivision (c) that it would be detrimental to the child to recognize only two of the parents. As we will explain, we conclude that the finding of detriment if only two parents are recognized is not supported by substantial evidence. We will therefore reverse the order that made both the father and the stepfather presumed parents, and remand the matter to allow the juvenile court to determine which of the conflicting presumptions of parentage should control under these circumstances. (Fam. Code, § 7612, subd. (b). Unspecified statutory references are to the Family Code.)
I. BACKGROUND
A. REMOVAL OF CHILD AND DEPENDENCY PETITION
Five-year-old I.R. and her two-year-old half-sister were removed from their mother's care after the mother was arrested. The mother was found under the influence of methamphetamine wandering on the side of the road with both children. Police officers reported that the children were living in an RV with the mother and her husband (I.R.'s stepfather and the younger child's biological father). The family was from Ohio but had recently moved because, according to the mother, " 'drugs are cheaper in California.' " I.R. had bruises that looked to be from abuse, and she said she had been beaten with a belt by the stepfather. She also said she had not eaten since the day before because her mother had not fed her. The mother admitted to police that her drug addiction made her concerned for the safety of her children, and that she wanted to give them to social services. The Santa Clara County Social Services Agency Department of Family and Children's Services took the children into protective custody and filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1), alleging that the mother failed to protect I.R. and was unable to care for her due to substance abuse or mental illness. The petition also named I.R.'s biological father, who lived in Ohio and had not had contact with her since she was an infant.
The mother and stepfather have a history of child neglect allegations from Ohio. In 2013, their two-week old baby died from suffocation when the mother fell asleep while breastfeeding. A year later, the mother and stepfather were reported to be abusing drugs and not providing a safe living environment for I.R. Authorities sought to remove I.R. from the custody of the mother and stepfather because they were under the influence of methamphetamine and their home was unsafe for children. In the spring of 2016, they were reported to police because people were doing drugs in their yard. Later that year, the mother telephoned her sister, who lived in California, and asked her to take the children. During that conversation, the stepfather was heard yelling " 'she just needs to fucking take the kids!' "
A social worker interviewed both the stepfather and the father as part of the investigation into the allegations in the petition. The stepfather had a felony conviction in Ohio for drug possession, and an outstanding warrant for receiving stolen property. He admitted having a drug problem and using drugs regularly since the age of 12, and expressed concern about the long term impact the substance abuse was having on his brain function. The social worker believed that both the stepfather and the mother were incapable of providing adequate parenting. Based on statements made by the mother and the children, the social worker also believed that the stepfather physically abused the mother in the presence of the children.
I.R.'s biological father has a history of alcoholism, and post-traumatic stress disorder related to previous military service. He is on probation in Ohio and has criminal convictions for multiple driving under the influence offenses, felony theft, and misdemeanor harassment. His probation officer reported that despite some " 'bumps in the road,' " such as a relapse with alcohol, he was currently doing well and recently tested negative for all substances. The father told the social worker that he was concerned for his daughter's welfare, and wanted her placed in his care. The social worker observed that though the father had struggled with substance abuse and mental health issues, "he appears to have significantly stabilized his life such that he is compliant with the terms of his probation, is employed, and recently purchased a home."
The children were placed in foster care and the mother and stepfather were allowed supervised visits. They canceled one of the visits, and failed to attend another without notice. Because the children were anxious to leave at the end of one visit, future sessions were shortened to accommodate their comfort level. I.R. also had several visits with her father. She was excited about them and they went well enough that the social worker allowed less supervision for future visits. The social worker noted that on one occasion I.R. "clearly did not want the visit to end."
The court then authorized I.R. to have a period of extended visitation with her father in Ohio. The social worker reported that the father and I.R. quickly bonded, she had settled into a structured routine, and her behavior had stabilized. She was enrolled in elementary school, and was showing normal academic and behavioral functioning. The father had his own general contracting business with 15 employees, and the social worker concluded his home was a safe environment for I.R. However, while I.R. was living with him, the father was arrested for being involved in a drunken fight at a bar (I.R. was apparently spending the night at a relative's home at the time). Though I.R. was doing well overall, the incident caused the social worker concern about the father's sobriety and ability to safely parent.
B. PRESUMED PARENT FINDINGS
The stepfather asked the juvenile court to find that he is I.R.'s presumed parent under Family Code section 7611, subdivision (d), which allows a court to recognize a person as a presumed parent—even where there is no biological relationship—if the child has been received into the person's home and openly held out as the person's natural child. The juvenile court found that the stepfather met the statutory requirements and found him to be I.R.'s presumed father. But the juvenile court found that the father met those requirements as well, and therefore was also I.R.'s presumed father. The court then invoked Family Code section 7612, subdivision (c), which allows the recognition of more than two parents in appropriate situations. The court found it would be detrimental to I.R. if only two parents were recognized, and conferred presumed father status on both the stepfather and the father. The court explained the basis for the detriment finding on the record: "One of the reasons that I make that finding is because I do not know how successful [the father] is going to be. And I think that it is necessary to continue to promote [the stepfather] in this child's life until we know we have stability. And clearly what's gone [on] over the last two days is that we are not in a point of stability. [¶] I also think there's an existing relationship that is admittedly bumpy, but I think it was there, and I think it would be detrimental to just end that at this point, so that's my findings."
At a later hearing, the social worker reported to the juvenile court that the stepfather had a warrant for his arrest from Monterey County. He had been charged with assault with a deadly weapon and grand theft based on allegations that he stole items from a Home Depot and hit an employee with his truck while driving away. The court found I.R. to be a juvenile dependent, and ordered her removed from the custody of her mother and stepfather and placed in the custody of her father in Ohio. The court ordered family maintenance services for the father and reunification services for the mother and stepfather. Less than two months later, the father filed a petition under Welfare and Institutions Code section 388, requesting that the court set aside its previous finding of presumed parent status for the stepfather because of the criminal charges resulting from the Home Depot incident. The court denied the petition.
The father has appealed the order giving the stepfather presumed parent status, and the father has separately appealed the later order denying his section 388 petition. We ordered the appeals considered together. After the father filed his combined opening brief, the Santa Clara County Department of Family and Children's Services notified us by letter that it takes no position on the issues raised and would not be filing a brief. The stepfather was not initially given notice of these proceedings; he filed a respondent's brief after we ordered service of the notice of appeal and appointed counsel to represent him.
II. DISCUSSION
A. SUFFICIENT EVIDENCE SUPPORTS STEPFATHER'S PRESUMED PARENT STATUS
The father contends there is insufficient evidence to support the juvenile court's finding that the stepfather meets the statutory requirements for a presumed parent. We review a finding of presumed parentage for substantial evidence, considering the entire record in the light most favorable to the ruling and giving it the benefit of every reasonable inference. (In re Alexander P. (2016) 4 Cal.App.5th 475, 492.) If there is substantial evidence to support the decision it will not be disturbed on appeal, even if there is other evidence to support a different ruling. (Ibid.)
The purpose of presumed parentage in the dependency context is to identify persons who are entitled to seek reunification services and custody because of a parenting relationship with the child. (In re Alexander P., supra, 4 Cal.App.5th at p. 485.) A biological relationship is not required. (Ibid.) The juvenile court found that the stepfather qualifies as a presumed parent under Family Code section 7611, subdivision (d), which provides that a person is a presumed parent if he or she "receives the child into his or her home and openly holds out the child as his or her natural child." The record contains sufficient evidence to support that decision. The stepfather's relationship with I.R.'s mother began when I.R. was around a year old, and he lived with I.R. and her mother for more than three years (although interrupted for a time when he was incarcerated). He assisted with child care, paid for at least some living expenses, and participated in I.R.'s birthday celebrations. I.R. called him "daddy," and in a social worker's opinion the stepfather appeared to have filled the role of a father figure for most of the child's life.
The father acknowledges the facts indicating the stepfather assumed a parental role for much of the child's life, but argues the stepfather is precluded from presumed parent status because he abused and neglected the child during much of that time. The father relies on In re T.R. (2005) 132 Cal.App.4th 1202, 1212, which held that a presumption of parentage under section 7611, subdivision (d) can be rebutted by a finding that the person in question acted in a manner "inimical to [the child's] welfare and well-being." (Id. at p. 1211.) The T.R. court reasoned that, "[i]f an individual can qualify for presumed father status based on his good deeds consistent with parental responsibilities, it follows that under certain circumstances he can be disqualified by repugnant conduct that is detrimental to the child." (Id. at p. 1212.) We acknowledge that the juvenile court could have followed the path of the juvenile court in T.R. and ruled the stepfather's conduct was so harmful to the child's wellbeing that it disqualifies him from presumed parent status. As the father points out, there is evidence that the stepfather physically abused I.R. and her mother, has a severe drug addiction, beat the child with a belt, and allowed her to live in a dirty R.V. with little food available. He was also separated from the family for significant periods of time due to incarceration and marital difficulties with the mother. The stepfather's behavior could reasonably be considered "repugnant conduct that is detrimental to the child," such that he should not be given presumed parent status. (Ibid.)
But that was not the juvenile court's conclusion, and we are not deciding this case in the first instance. Rather, our role is to determine if there is sufficient evidence to support the decision the court did make. As we have discussed, the record contains substantial evidence to support the conclusion that the stepfather meets the requirements of section 7611, subdivision (d) for presumed parentage. We will therefore not disturb that ruling, even if the evidence could support a different conclusion.
B. INSUFFICIENT EVIDENCE OF DETRIMENT FROM RECOGNIZING ONLY TWO PARENTS
The juvenile court's finding that both the stepfather and the father meet the requirements for presumed parentage is an outcome that did not go unanticipated by the Legislature. Section 7612, subdivision (b) provides a procedure for resolving conflicting presumptions of parentage: "If two or more presumptions arise under Section [...] 7611 that conflict with each other ... the presumption which on the facts is founded on the weightier considerations of policy and logic controls." Here, rather than using that weighing procedure to determine whether the stepfather or the father should be the presumed father, the court invoked section 7612, subdivision (c), which allows for more than two parents to be recognized in "an appropriate action" if detriment to the child would otherwise result. The court found it would be detrimental to I.R. unless both the stepfather and the father were recognized as presumed parents, leaving her with three parents. The father contends the court erred by applying section 7612, subdivision (c) to allow for the recognition of more than two parents. As with a finding of presumed parentage, we review a finding under section 7612, subdivision (c) of detriment to the child for substantial evidence. (In re M.Z. (2016) 5 Cal.App.5th 53, 64.) We again view the record in the light most favorable to the ruling, and determine whether there is sufficient evidence, even if contradicted, to support the decision.
Section 7612, subdivision (c) provides: "In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage." The statute was enacted in 2013 to allow more than two parents to be recognized in limited contexts, and it is intended to apply only in " 'rare cases.' " (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1086-1087.) "The Legislature borrowed the 'detriment to the child' standard from section 3041, which governs custody awards to a nonparent over the objection of a parent." (Id. at p. 1089.) Under section 3041, determining detriment to the child involves considering the prospect that a successful and established custodial arrangement would be disrupted, and the harm caused by removing the child from a stable, continuous and successful placement. (Ibid.) The concept of " 'stable placement' " encompasses more than just a child's current living arrangements, but also the "sources of fulfillment of the child's physical and psychological needs for care and affection." (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 384.)
The juvenile court's detriment finding here was premised on (1) uncertainty about whether the biological father would be successful in parenting the child; and (2) the existing, though "bumpy," relationship I.R. has with the stepfather. On this record, neither reason adequately supports the finding there would be detriment to I.R. if only two parents were to be recognized. The first reason—that the court did not know how successful the biological father will be in parenting the child—is not evidence that the child will suffer detriment unless both the stepfather and the father are recognized as parents. At most, it is a finding that if the father neglects or abuses the child in the future, then at that time it would be beneficial for the child to have another legally recognized father. Evidence of possible future detriment is not sufficient to meet the standard for recognizing more than two parents under section 7612, subdivision (c). (In re Donovan L. supra, 244 Cal.App.4th at. p. 1093 [a court's speculation about potential harm is not substantial evidence supporting a finding of detriment within the meaning of section 7612, subdivision (c)].). The juvenile court's concern that the biological father might have problems parenting in the future—a concern stemming from the father's criminal and substance abuse history, and his recent arrest—is a valid one. The legitimacy of that concern notwithstanding, it is inherently speculative and as such cannot constitute substantial evidence of detriment to the child. It is true the father might have problems parenting in the future. But it is just as true that the father might do very well.
The second reason for the juvenile court's decision, that detriment would result from terminating the child's existing "bumpy" relationship with the stepfather, is not supported by the evidence. The record does support the finding of the existence of a parental relationship with the stepfather merely because he met the requirements for presumed parent status under section 7611, subdivision (d). Absent from the record is any evidence that the child's relationship with the stepfather was successful or stable. To the contrary, it is clear the relationship was defined by severe neglect. The detriment envisioned by section 7612, subdivision (c) is that which occurs from disruption of a successful parental relationship, one that provides "sources of fulfillment of the child's physical and psychological needs for care and affection." (Martinez v. Vaziri, supra, 246 Cal.App.4th at p. 384.) Not only is there no evidence of a successful relationship with the stepfather, there is also a complete lack of evidence indicating emotional harm or other negative consequences experienced by the child due to being separated from the stepfather. Indeed, she began to thrive after being placed with her father more than halfway across the country. A social worker specifically noted that at the end of visits with her mother, stepfather, and half-sister, I.R. had some difficulty separating from her half-sister, but "did not have difficulty separating from the mother and [stepfather]." Having reviewed the entire record, we do not find substantial evidence to support the conclusion that recognizing only two parents would cause I.R. to be removed from a stable placement, or result in any other cognizable detriment to her.
We understand the difficult decision the juvenile court faced in confronting conflicting presumptions of parentage, neither of them ideal. And we have no doubt the court was seeking to act in the best interest of the child by essentially keeping all options open. But section 7612, subdivision (c) only allows for recognition of more than two parents when there is evidence that detriment to the child—that is, removal from a stable, healthy relationship—would otherwise result. There is no such evidence here, so we must reverse the order recognizing both the stepfather and the father as presumed parents. Since we have found sufficient evidence to support the juvenile court's finding that the stepfather meets the criteria for presumed parentage under section 7612, subdivision (d), there are conflicting presumptions of parentage between him and the father. We will therefore remand the matter for the juvenile court to determine which of those presumptions should control, based on considerations of policy and logic. (§ 7612, subd. (b).) On remand, the "court must make factual findings with respect to each presumption and only then weigh which presumption is entitled, in that case, to greater weight." (Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 52.) In resolving the conflict, the juvenile court must be guided by the principle that the end goal is the protection of the child's well-being. (Ibid.)
C. THE FATHER'S WELFARE AND INSTITUTIONS CODE SECTION 388 PETITION IS MOOT
The father appeals the denial of his petition under Welfare and Institutions Code section 388 to modify the order recognizing more than two parents and making the stepfather a presumed parent. Since the order recognizing more than two parents must be reversed, the contention that the court erred in denying the petition to modify that order is moot. On remand, the concerns that prompted the petition to modify (the stepfather's arrest on felony charges) can be brought to the juvenile court's attention as one of the circumstances that may inform the decision about which presumption of parentage under section 7611, subdivision (d) should control.
III. DISPOSITION
The order recognizing both the stepfather and the father as presumed parents is reversed. The matter is remanded to the juvenile court to apply Family Code section 7612, subdivision (b) to determine whether the stepfather's or the father's presumption of parentage controls.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Elia, Acting P. J. /s/_________
Premo, J.